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This presentation provides practical advice on improving the relationship between trustees and their counsel, while discussing the legal standards for retaining and compensating attorneys in Texas.
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Trustees’ Ability To Retain And Compensate Attorneys In Texas By David F. Johnson
Introduction • Trustees owe duties to their beneficiaries to retain effective and cost-appropriate counsel. • It is important to have a good working relationship between trustee and counsel. • This presentation is intended to give practical advice to improve the relationship between trustees and their counsel and to discuss the legal standards for retaining and compensating attorneys.
Selecting Counsel • How should trustee hire their counsel? • There is no one right answer. • What is the legal work that needs to be done? • Highly complex or more routine? • Does the assignment require expertise that justifies a higher rate/expense? • So, a trustee should determine what type of attorney is necessary.
Selecting Counsel • A trustee should then determine who the attorneys are with the necessary experience to efficiently handle the assignment. • Attorneys are becoming more specialized—take advantage of that. • Is industry knowledge necessary or helpful? • A trustee should utilize industry networking to assist in identifying qualified counsel.
Selecting Counsel • Consider the following factors: • Ethics; • Reputation; • Expertise in the area of law (“Thought Leaders” in the area); • Track record; • Firm size, resources, and location; • Knowledge of forum and/or judge; • Rates; • Willingness to consider alternative billing arrangements; • Team; • Diversity; and • Responsiveness.
Engagement Letters • Engagement letters are very important to both a trustee and counsel. • These are the contracts that set the stage for all future work and disputes. • The use of properly drafted engagement letters is not only a critical risk management tool, but also forms the foundation of client communication and trust. • Need different engagement letters for different assignments.
Engagement Letters • Things to include in letters: • Identify client (and who is not the client); • Rates/Fee Arrangement; • Retainer; • Who pays bills and retainer; • Billing and payment; • Scope of assignment (and limitations);
Engagement Letters • Multi-party issues; • Termination; • Technology/hacking; • Conflicts of interest and waivers; • Business conflicts; • Rules of ethics; • No guarantee on results or cost; and • Dispute resolution terms.
Fee Issues • At the outset of all legal assignments there should be an agreement and understanding as to the fees and compensation. • Written agreement required for contingency fee cases. • Written agreement should be executed for all assignments. • Market rates for the level of expertise required and/or the locality of the work.
Fee Issues • Consider different rates for different types of work even for the same counsel. • Consider alternate billing arrangements such as lower rate/partial contingency. • Insurance issues? Panel requirements or fee limitations? • Warning: what a client is willing to pay counsel may not correlate to reasonable fees for the purposes of a recovery in a court of law.
Communication • Constant, clear communication from both sides is essential. • The first step is to set an understanding of what communication is expected, how often, and in what medium. • What communication is expected? • How often is counsel expected to communicate? • How does trustee prefer the communication (emails, phone calls, etc.)?
Communication • Communicate expectations at the outset. • Timing considerations? • What is the budget and expense considerations? • Formal written budget (update requirements)? • Rate issues? • Aggressiveness? • Staffing? • Experience requirements? • Confidentiality/Privacy? • Internal political issues?
Communication • Communicate during the engagement. • Is the assignment proceeding on schedule? • Is the assignment on budget? If not, why not? • Attorneys on team up to expectations? • Any change in goals, strategy?
Communication • Communicate after the assignment is over. • Outcome consistent with goal? • Work product issues? • Budgeting, timing, staffing issues? • Issues for next project for improvement?
Staffing Issues • There should be an understanding early on and throughout a relationship regarding what attorneys the counsel should use on his or her team. • Younger, less-expensive attorneys? • Older, higher-rate attorneys? • Expertise requirements? • Personality issues? • Diversity issues? • What task will be handled by what attorney?
Litigation Issues • Litigation can be especially stressful on the trustee and counsel relationship. • There should be open communication about the following: • What’s the trustee’s philosophy about trying or defending cases? • What is the big picture? • What does the trustee need to report? • How involved does trustee want to be in litigation decisions and course of the case?
Litigation Issues • Counsel should be respectful of trustee’s time. • Forward drafts of motions/briefs/pleading with sufficient time for review. • Be responsive, answer emails and voicemails. • No surprises.
Bills • Trustee needs to communicate what entries you do not expect to pay for or see on a bill. • Block billing, task codes, etc.? • Counsel should review all bills to ensure that inherently offensive items are not included: no inter-office conferences, multiple attorneys on same task, research that has not been pre-approved, attorneys that have not been pre-approved, tasks that are unexpected, etc. • “Although the conversation about bills is probably one of the least fun for both in-house and outside counsel, it can also be productive because it reinforces our need to collaborate in defining a project, managing fees and costs, and providing the best advice to our client.”
Tell The Truth! • Warning: there are several different types of outside counsel. • Debbie Downer—your case is terrible and maybe the outside counsel can salvage it for you. • White Knight—your case is great and he or she will vindicate you. • Honesty is important and also part of counsel’s duty. • Don’t accept anything less. • However, there is some limitations on what outside counsel can forecast—do not ask for percentage of chance of success or failure.
Tell The Truth! • Worst feeling for an outside counsel is never getting that next call and not knowing why. • Trustee should tell their attorneys the bad news—what did they do wrong or could do better. • This is true even if the trustee does not intend to hire the outside counsel again. • Call it a public service.
Attorney-Client Privilege • The attorney-client privilege protects from disclosure confidential communications between a client and his or her attorney "made for the purpose of facilitating the rendition of professional legal services to the client . . . ." Tex. R. Civ. Evid. 503(b). • Trustee has no duty to disclose attorney-client communications to beneficiaries. Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996).
Attorney-Client Privilege • Warning: a trustee should be careful about using advice of counsel as a defense to a claim. • Advice of counsel is a factor in evaluating a trustee’s prudence. • If a trustee raises advice of counsel as a defense, then the trustee will likely waive attorney-client communication privilege.
Inadvertent Attorney-Client Relationship • A trustee and its counsel should be careful to appropriately communicate with the beneficiary such that the beneficiary does not believe that he or she is a client of the attorney. • While it is generally a relationship created by contract, an attorney-client relationship can be implied based on the conduct of the parties. • To determine whether there was a meeting of the minds, a court uses an objective standard, examining what the parties said and did and do not look at their subjective states of mind. • A trustee does not generally want to share counsel with a beneficiary.
Compensating Attorneys • The first place to look for any power is the trust document itself. • Drafting Tip: Consider broader provisions regarding a trustee retaining counsel and compensating them (consider language for interim payments). • Trust documents generally do not limit a trustee’s power to retain and compensate attorneys. • The Texas Property Code has several provisions that impact a trustee’s power to compensate attorneys.
Compensating Attorneys • Texas Trust Code Section 113.018 provides that “A trustee many employ attorneys, accountants, agents, including investment agents, and brokers reasonably necessary in the administration of the trust estate.” • Does this imply a right to compensate?
Compensating Attorneys • Section 114.063 states: “(a) A trustee may discharge or reimburse himself from trust principal or income or partly from both for: (1) advances made for the convenience, benefit, or protection of the trust or its property; (2) expenses incurred while administering or protecting the trust or because of the trustee’s holding or owning any of the trust property; … (b) The trustee has a lien against trust property to secure reimbursement under Subsection (a).” • This does not specifically address attorneys. • This does not expressly require necessary or reasonable fees. • Does this apply just to routine trust administration issues or does it also address litigation where a trustee defends against breach of fiduciary duty claims?
Compensating Attorneys • Trust Code section 114.064 provides that, “[i]n any proceeding under this code, the Court may make such award of costs and reasonable and necessary attorney’s fees as may seem equitable and just.” • This does deal with litigation: “proceedings” and “Award” • This does require a finding of necessariness, reasonableness, and equitableness and justness.
Compensating Attorneys • A trustee has the powers recognized by the common law. • “A trustee is not limited to incurring expenses that are necessary or essential, but may incur expenses that, in the exercise of fiduciary judgment are reasonable and appropriate in carrying out the purposes of the trust, serving the interests of the beneficiaries, and generally performing the functions and responsibilities of the trusteeship.” Restatement (Third) of Trusts § 88 cmt b. • Corpus Christi Bank & Trust v. Roberts, 597 S.W.2d 752 (Tex. 1980). • Fairly clear that a trustee has the power to retain and pay attorneys for trust administration issues and to defend trust assets without approval of a court. • However, the misuse of that discretion could be challenged later by a breach-of-fiduciary-duty claim.
Compensating Attorneys • The Texas Property Code does not provide any clear guidance as to how these two provisions work together in the context of defending breach claims. • Possible theories? • No clear precedent in Texas on this issue.
Compensating Attorneys • Can a trustee pay its attorneys from trust funds in defending against a claim of breach of fiduciary duty? • The Restatement of Trusts provides: “To the extent the trustee is successful in defending against charges of misconduct, the trustee is normally entitled to indemnification for reasonable attorney’s fees and other costs; to the extent the trustee is found to have committed a breach of trust, indemnification is ordinarily unavailable.” Restatement (Third) of Trusts § 88. • “Ultimately, however, the matter of the trustee’s indemnification is within the discretion of the trial court, subject to appeal for abuse of that discretion.” Id.
Compensation In The Interim • There is very little authority in Texas that is directly on point a trustee is entitled to compensate attorneys from a trust in defending claims of breach of fiduciary duty in the interim. • Some authority seems to suggest that a trustee has the ability to do so. • In In the Guardianship of Hollis, No. 14-13-00659-CV, 2014 Tex. App. LEXIS 12038 (Tex. App.—Houston [14th Dist.] November 4, 2014, no pet.).
Compensation In The Interim • Texas cases normally state that a trustee may pay for attorneys in defending a claim of breach if done in good faith and reasonably. • Can a trustee take money from a trust to pay its attorneys before a finding of good faith or reasonableness?
Compensation In The Interim • In In re Nunu, an estate beneficiary sued the executrix to have her removed and also sought to have the court refuse to pay her attorneys in the interim. No. 14-16-00394-CV, 2017 Tex. App. LEXIS 10306 (Tex. App.—Houston [14th Dist.] November 2, 2017, pet. denied). • The court held: “There is no such order in the record, and the trial court could not properly have approved payments made before the removal action had been decided. Although Nancy appears to have assumed that she could pay her legal fees without first obtaining findings that the fees were both necessary and reasonable, the statute does not authorize such a procedure.” Id.
Compensation In The Interim • In re Nunu is consistent with authority from other jurisdictions that hold that a trustee does not have authority (and a trial court does not have authority) to award attorney’s fees from a trust in the interim and before a final decision is made on good faith and merits of the underlying breach-of-fiduciary-duty claim. • In Kemp v. Kemp, an appellate court reversed a trial court’s award of attorney’s fees to a beneficiary in the interim against a trustee even though the trustee admitted to breaches of fiduciary duty at the hearing. 337 Ga. App. 627, 632 (788 SE2d 517) (2016).
Compensation In The Interim • In People Ex Rel Harris v. Shine, the trustee petitioned for advance fees from the trust for defense of a petition for removal, subject to repayment if the trustee was ultimately found not entitled to indemnity. 224 Cal. Rptr.3d. 380 (2017). • The court would allow such a payment in some instances and stated: “the grantof interim fees should be governed by the following: the court must first assess the probability that the trustee will ultimately be entitled to reimbursement of attorney fees and then balance the relative harms to all interests involved in the litigation, including the interests of the trust beneficiaries. An assessment of the balance of harms requires at least some inquiry into the ability of the trustee or former trustee to repay fees if ultimately determined not to be entitled to costs of defense.”
Compensation In The Interim • Some of these issues were argued in a recent case in Texas. • In In re Cousins, a trustee filed a mandamus proceeding to challenge a trial court’s denial of a motion to pay his attorney’s fees from the trust. No. 12-18-00104-CV, 2018 Tex. App. LEXIS 3930 (Tex. App.—Tyler May 31, 2018, original proceeding). • The court did not address the substance of whether Section 114.063 allowed the payment in the interim and denied on procedural grounds.
